Brunton v. United States, C-2-81-523.

• Decision Date: 30 June 1981
• Docket Number: No. C-2-81-523.,C-2-81-523.
• Citation: 518 F. Supp. 223
• Parties: Wallace D. BRUNTON, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Ohio

518 F. Supp. 223

Wallace D. BRUNTON, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-2-81-523.

United States District Court, S. D. Ohio, E. D.

June 30, 1981.

COPYRIGHT MATERIAL OMITTED

Denis J. Murphy of Carlile, Patchen, Murphy & Allison, Columbus, Ohio, Walter H. Fleischer of Cole & Groner, Washington, D. C., for plaintiffs.

Thomas S. Martin, Acting Asst. Atty. Gen., James C. Cissell, U. S. Atty., S. D. Ohio, Albert R. Ritcher, Asst. U. S. Atty., Columbus, Ohio, Paul Blankenstein, Raymond M. Larriza, Dept. of Justice, Washington, D. C., for defendant.

OPINION AND ORDER

KINNEARY, District Judge.

Nineteen plaintiffs who are Democrats and were formerly employed as State Directors of the Farmers Home Administration FmHA of the United States Department of Agriculture USDA, filed this suit seeking injunctive relief from their political patronage dismissals by President Reagan's Administration. Before the Court are plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss or, in the alternative, for summary judgment.

Plaintiffs¹ allege that they were dismissed from their federal employment by the new Administration solely because they are Democrats. Thus, on constitutional grounds they contend that under the United States Supreme Court's decision in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the dismissals violated their First Amendment right to hold public employment without regard to political affiliation. Furthermore, twelve plaintiffs² challenge the dismissals under the Veterans' Preference Act, 5 U.S.C. § 7512. Accordingly, plaintiffs filed motions for a temporary restraining order and a preliminary injunction requesting the Court to restore them to their former positions with all the related benefits.

Motion For Dismissal Or Summary Judgment

The defendant, United States, has responded to plaintiffs' suit by inviting the Court to dismiss the complaint or, in the alternative, to grant summary judgment. To do either of these, the Court declines the invitation.

I.

Supporting its motion to dismiss, the government argues, first, that plaintiffs fail to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), F.R. Civ.P. The Court fails to see any merit to this contention.

In reviewing the motion, all allegations in the complaint are taken as true and the complaint is construed liberally in favor of the party opposing the motion. Davis H. Elliot Co. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). The motion should not be granted under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Davis H. Elliot Co. v. Caribbean Utilities Co., Ltd., supra. Clearly, the plaintiffs' complaint, alleging political patronage dismissals, states a First Amendment claim upon which relief may be granted, on the basis of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

Secondly, the government contends that plaintiffs have failed to exhaust the administrative remedies established by the civil service statutes and regulations³ and, therefore, this Court lacks subject matter jurisdiction, pursuant to Rule 12(b)(1), F.R. Civ.P. With almost equal brevity the Court also rejects this argument.

In Elrod v. Burns, supra at 373, 96 S.Ct. at 2689 Justice Brennan on behalf of a plurality of the U. S. Supreme Court, stated that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Another division of this court in Kelly v. United States Postal Service, 492 F.Supp. 121 (S.D.Ohio 1980), relied on the above language in Elrod in granting preliminary injunctive relief to U. S. postal employees who were discharged for wearing at work tee-shirts bearing a foreign political message. After citing to the exhaustion doctrine and its favored application in lawsuits, this court explained that

this policy gives way however when the employee suffers irreparable harm. Plaintiffs here have alleged violation of their First Amendment rights. Such violation would as a matter of law, constitute irreparable harm. Hence, this Court need not await exhaustion of the grievance-arbitration process plaintiffs have pursued. (Citations omitted).

Kelly v. United States Postal Service, supra at 127. See also Gilley v. United States, 649 F.2d 449 (6th Cir., 1981).

II.

The Court has also concluded that the defendant's alternative motion for summary judgment should be denied. In support of its motion, the government has presented affidavits from two top officials in the USDA and the FmHA, and the current USDA's job description for the FmHA State Director position. Based on these, the government argues that the former role and duties of the plaintiffs as State Directors are conclusively established as being ones of a confidential and policymaking nature, thus falling within the parameters of justifiable political patronage dismissals set forth in Branti v. Finkel, supra.

Rule 56, F.R.Civ.P. provides that the Court may grant defendant's motion for summary judgment only "if the pleadings ... together with the affidavits, ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." While the government's exhibits lend support to their claim, they do not conclusively "demonstrate that party affiliation is an appropriate requirement for the effective performance" of the plaintiffs' former positions as FmHA State Directors. Branti v. Finkel, 445 U.S. at 518, 100 S.Ct. at 1294. The plaintiffs' affidavits present disputed issues of material fact regarding the actual role of the plaintiffs as former State Directors, and for this reason the Court is unwilling to take summary action.

Motion For Preliminary Injunction

I. Introduction

The Court held an evidentiary hearing on plaintiffs' motions for injunctive relief on April 30, 1981. In addition to many exhibits, the testimony of Robert R. Shaw, Frank W. Naylor, Jr., Dwight O. Calhoun, Joseph A. O'Mara and plaintiff Wallace D. Brunton was received.

Wallace Brunton, one of the nineteen plaintiffs in this action, was the FmHA State Director of Ohio until his discharge on May 31, 1981. Robert Shaw, on the other hand, is the State Conservationist for Ohio in the USDA's Soil Conservation Service. His testimony essentially portrayed the similarities and differences between his position within that particular agency compared to Brunton's position within the FmHA.

The testimony of Messrs. Naylor, Calhoun, and O'Mara was offered primarily to explain the past, present, and future duties of FmHA's State Directors and the circumstances surrounding the discharge of the plaintiffs. Frank Naylor is President Reagan's nominee for the key USDA position of Under Secretary for Small Communities and Rural Development. Prior to his appointment he prepared the original rural development draft on behalf of the President's Transition Committee. He has also served as the Associate Administrator of FmHA under former Secretary Earl Butz and as FmHA's Acting Administrator under former Secretary Robert Bergland.

Dwight Calhoun has been employed within the FmHA for nearly twenty-five years, the last four serving officially as the Assistant Administrator for Community Programs. Since February 11, 1981, he has been serving in an interim appointment as Acting FmHA Administrator until Charles Schuman, the new Administrator appointed by the President, is confirmed by the Senate. Finally, Joseph O'Mara is the Acting Director of the Personnel Division of the FmHA and prior to his appointment on March 4, 1981, he was Chief of the Classification Branch of the Personnel Division.

At the hearing, the Court denied plaintiffs' motion for a temporary restraining order but took under advisement the motion for preliminary injunctive relief (tr. 179). Based upon the evidence adduced at the hearing, the pleadings, the memoranda of the parties, and other materials before it, the Court now makes the following preliminary findings of fact and conclusions of law pursuant to Rule 52, Federal Rules of Civil Procedure.

II. Findings of Fact

A. The Farmers Home Administration. The Farmers Home Administration is a comprehensive farm and rural development agency within the United States Department of Agriculture. It is the principal credit agency of USDA which dispenses billions of dollars in federal assistance for the operation of generally four FmHA program categories (tr. 13-14; plaintiffs' exhibit V):⁴ (1) the housing loan program assisting single and multiple families with low to moderate income residing in rural areas; (2) the farmer program loans designated to assist commercial farming enterprises; (3) the community loan programs, which aid in the construction of water and waste disposal projects and community facilities such as hospitals, swimming pools, and golf courses; and, (4) the business and industrial development loans (tr. 13-17, 35, 125; plaintiffs' exhibit W).

The organizational structure of the FmHA is of a highly decentralized nature. There is a national office in Washington, D.C. where the Administrator heads the agency. The number two line officer under the FmHA Administrator is the Associate Administrator, the senior loan officer at the national office in charge of reviewing the FmHA loans and grants approved by the forty-six State Directors. Next in the agency's hierarchy are several Assistant Administrators and three Deputy Administrators, all of whom share in the responsibility for carrying out the agency programs and operations at the national level. (tr. 119; affidavit of Frank Naylor, ¶ 6, appended to defendant's motion to...